Lawyers who aim to live in perfect harmony

Jeremy Fleming meets the solicitors working from within at the European parliament

From the perspective of the European Commission, lawyers are causing fewer problems than some of their professional counterparts when it comes to implementing harmonising measures.

In the case of lawyers, it is the rights of establishment directive, which allows lawyers to practise permanently and without restriction, under their home professional title, in another member state.

Nevertheless, the Netherlands and Luxembourg recently joined Ireland and France in facing legal action from the European Commission for failing to implement the directive.

The Netherlands and Luxembourg are already making progress, according to a commission official at the directorate-general of the internal market who works in the unit for the recognition of professional services.

Last June, the commission decided to lodge a complaint against them, but this has not yet been made official.

In the Netherlands, the Dutch Bar applies the directive, but it has yet to be formally implemented, whereas in Luxembourg a draft Bill has been presented to the parliament.

In Ireland, there has been progress with a Bill lodged in parliament, but the situation in France is still unclear.

The official makes clear that the commission means business if the countries do not co-operate.

The commission is also preoccupied by the difference between the systems for registering diplomas in the member states.

Currently, the system is such that a migrant arriving in another member state may either take an aptitude test or serve a probationary period to qualify for registration as a professional in the secondary state.

But there has long been an exception for the legal profession, allowing member states to choose one of the two methods.

Now a proposal from the commission suggests that the choice should be the individual lawyer's.

The official says the problems thrown up by lawyers are not as complicated compared to those affecting other professions.

This is perhaps reflected in the willingness of the commission to exclude the legal profession from a recent proposal - now under consideration by the Council of Ministers - to scrap 15 directives affecting professional services and replace them with a simpler directive.

commission officials may deal with the extent of harmonisation for the legal profession - extending as it does to mutual recognition (or not) of qualifications - but over the road at the European Parliament more radical proposals are in genesis.

Solicitor Diana Wallis - the leader of the Liberal group in the European Parliament, and a member of the parliament's legal affairs committee - is waiting to see what the UK government response will be to the proposals for community-wide mutual legal aid provisions.

The UK is rumoured to be worried about the proposals on the grounds, it says, that they would cost the country many millions of pounds by funding cross-border cases.

Ms Wallis is concerned at the apparent hostility of the UK to the proposal, which she contends is a key access to justice measure.

She has been given the role of rapporteur on the issue on behalf of the committee to the parliament.

Access to justice is one of the main preoccupations of Ms Wallis, who won the Yorkshire and the Humber seat for the Liberal Democrats in 1999.

The difficulty with proposals - such as that for mutual legal aid - reflects the enormous problem of dealing with 11 official languages, and the fact that the EU comprises 15 different legal systems.

Ms Wallis wants to see action in this area.

'Overcoming this hurdle is not a case of trying to impose one uniform system on all of the states, but it would be helpful if all member states were prepared to work coherently towards some greater harmonisation of civil and consumer law,' Ms Wallis argues.

'At the moment we have a patchwork of directives applicable in specific sectors - directives that only experts can understand.'

She says the problem is that 'as soon as anyone says "let's work towards some kind of harmonisation through a civil or commercial code", the argument immediately becomes hijacked by the usual anti-European stories.'

Ms Wallis uses the example of a poster campaign launched against standardisation of consumer law in 2000.

'It showed a huge picture of Napoleon, and had a motto underneath claiming that the Napoleonic code was about take over the common law.'

In fact, a high level of uniform consumer protection law is already applicable across the Europe.

But the parliament now has the strength, says Ms Wallis, to make up ground on the issue.

But Anglo fears of Napoleon aside, there are real cultural differences between code-based European legal systems, and the common law approach.

Ms Wallis says that - in the debate that will take place on harmonisation - UK MEPs should be more bullish about the advantages of the common law system.

'We need to up the ante.

The Lord Chancellor's Department is being very pro-active about raising the profile of the English law, and to market our services, and any proposals for harmonisation would include many common law aspects.'

That said, Ms Wallis promotes a give-and-take approach: 'There is an assumption that any end result should be simple and transparent - and if the language of the French civil code is transparent and simple, relevant and easily accessible to citizens, then there should be no problem about saying that that's acceptable.

All sides have got to be prepared to compromise.'

Despite being a relative stripling in the European Parliament, Ms Wallis says she has already noticed a change in atmosphere with her intake of MEPs.

'There are a number of members who entered the parliament when I did who actually wanted to be here, rather than arriving because it was perceived as a place people were sent out to grass.

This parliament is much more powerful than its predecessors.'

Timothy Kirkhope, the Conservative MEP for Yorkshire and the Humber region, was a partner at Newcastle firm Wilkinson Maugham until 1987, when he joined the UK Parliament as a Conservative member representing Leeds.

He served ten years in the Commons, including a spell as a minister in the Home Office, where he worked on a licensing and gambling review, and oversaw the introduction of the criminal cases review tribunal.

Mr Kirkhope's luck ran out with so many other Tory colleagues in the New Labour landslide of 1997.

But, unlike some of those who sat around him on the defeated Tory benches, Mr Kirkhope had not lost his resourcefulness or his practising certificate, and he promptly started conveyancing for the many in his tribe who were selling their London pieds--terre.

'I wrote to all my pals offering to do it for them - since many of them could of course no longer afford their top City lawyers,' he explains.

But Mr Kirkhope says that he has been at least as busy on the legal front since also being elected as MEP for Yorkshire and The Humber in 1999.

He has compiled many legal reports in his role as Conservative spokesman on justice and home affairs.

Areas he has worked on have included the the phenomenon of child abuse on the Internet, and the creation of contact points across international jurisdictions for genocide cases.

The issue of harmonisation is one which Mr Kirkhope certainly has views on, if only because in his role as a member of the body currently considering the future of Europe under former French president Valery Giscard d'Estaing.

'I think what we want is a schedule of competencies rather than a constitution determining a federal Europe,' he says.

He is not keen on the harmonisation of laws either.

'What we want is co-operation rather than harmonisation.

People arguing in favour of harmonisation do not take account of the differences between the British and the French system.

This is the reason why the Conservatives never accepted the need to domesticate the Human Rights Act, because it has the effect of counteracting the development of the common law.'

The Conservatives may be in favour of slowing the advance of the European superstate, but Mr Kirkhope is reluctant for any of the existing powers of the European Parliament to be repatriated to the member states.

He says: 'People talk about repatriating powers; I say I'd be happy to see these proposals, but I don't think they should be repatriated until the British Parliament has got its house in order.

The executive has too much power and the legislature is inefficient.'

Isn't all this a bit rich coming form a former Thatcherite whip? 'I've seen it all and I know how it works.

That's why I know that my criticisms are correct,' he says.

The commission will continue with the limited harmonisation currently on the table, but it is safe to assume that - so long as MEPs such as Ms Wallis and Mr Kirkhope are in the parliament - there will be much wrangling over proposals for further harmonisation: expect blood to be spilt.